2. The present appeal is filed by the appellant-
accused against the judgment and order dated February
20, 2004 passed by the High Court of Madhya Pradesh
(Indore Bench) in Criminal Appeal No. 1258 of 1997. By
the said order, the High Court confirmed an order of
conviction and sentence recorded by the Second
Additional Sessions Judge, Neemuch on November 20,
1997 in Special Criminal Case No. 12 of 1994. Both the
courts convicted the appellant herein for an offence
under Section 8 read with Section 18 of the Narcotic
Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as the Act) and ordered him to
undergo rigorous imprisonment for ten years and also to
pay fine of rupees one lakh, in default to undergo
rigorous imprisonment for three years.

3. The case of the prosecution was that on May 1,
1993, at about 4.00 a.m. in the morning, Station House
Officer, Ratangarh received secret information through
an informant that one Shantilal (appellant herein)
resident of village Kankariya Talai was carrying narcotic
drug and was expected to have come from the said
village. He was to carry illegal opium to Beju (Rajasthan).
The information was recorded by the Officer in
Rojnamcha No. 997. The Rojnamcha was then sent for
information to S.D.O.P., Jawad in accordance with Sectin
42 of the Act. ASI Gopal Singh (PW7) proceeded with the
police party along with panch-witnesses Modi Ram (PW4)
and Abdul Tazim (PW8) in a jeep. They were divided in
two groups and hid themselves. At about 7.00 a.m., the
appellant was seen taking out a bag used to carry
fertilizer from a heap of grain from a field. When he was
coming out of Bara with the bag in his hand, he was
intercepted by ASI Gopal Singh and caught with the
assistance of police party. Gopal Singh told the accused
that it was suspected that he was carrying contraband
material and he had right to get search made by a
Gazetted Officer or by a Magistrate or by the witness
himself i.e. Gopal Singh. The appellant, however, opted
his search by ASI Gopal Singh himself. Accordingly,
search was conducted. From the person of the appellant-
accused, nothing was found but the bag carried by him
contained 7 kilos, 60 grams of narcotic drug. The
substance was smelt by panch-witnesses and it was
found to be opium. The appellant was arrested on the
allegation that he was possessing unlawful opium. He
was taken to the Police Station where a crime was
registered. Muddamal was deposited in Malkhana. After
due investigation, charge-sheet was filed against the
accused in Sessions Court, Mandsaur. The case was
thereafter transferred to the Additional Sessions Judge
for disposal in accordance with law.

4. The accused pleaded not guilty to the charge.
He contended that he was falsely implicated in the case
and claimed to be tried. He also contended that he was
arrested four days prior to the incident.

5. The trial Court on the basis of the evidence
adduced by the prosecution and believing the testimony
of PW 7-ASI Gopal Singh, PW 4-Modi Ram (panch I),
PW8-Abdul Wazim (panch II) and other witnesses, held
that the prosecution was successful in proving the case
against the accused. It also held that all procedural
requirements had been complied with and the accused
was found to be in possession of 7 kilos and 60 grams of
opium and had committed an offence punishable under
Section 18 of the Act.

6. On question of sentence, the Court afforded
hearing to the accused and finally passed the following
order;

For violation of provisions of Section 8 of
the NDPS Act, the accused Shantilal S/o
Devilal, aged 32 years, R/o. Village Kankariya
Talai, P.S. Ratangarh, District Mandsaur being
found guilty of the offence punishable under
Section 18 NDPS Act is punished with rigorous
imprisonment for 10 (ten) years with a fine of
rupees one lakh. In default of payment of fine,
he shall undergo a further rigorous
imprisonment for 3 (three) years.

7. Being aggrieved by the said order, the
appellant moved the High Court of Madhya Pradesh.
(Indore Bench) which confirmed the order of conviction
as well as sentence recorded by the trial Court. It
observed that the trial Court had rightly held that the
accused was carrying contraband opium weighing 7 kilos
and 60 grams and conviction recorded against him could
not be said to be illegal. Regarding sentence, the High
Court observed that minimum sentence was awarded by
the trial Court and it did not call for interference.
Accordingly, the appeal was dismissed.

8. The appellant challenged the orders passed by
both the courts by filing the present appeal. This Court
on January 31, 2007 passed the following order;

Delay condoned.

The Trial Court passed the judgment and
order dated 2.11.1997 convicting and
sentencing the accused under sections 8 and
18 of the NDPS Act of rigorous imprisonment
of 10 years and fine of Rs.1 lakh, and in
default, further additional rigorous
imprisonment for three years. It is now stated
by the learned counsel for the petitioner that
the petitioner has undergone the sentence for
nine years and six months and that he is not
able to pay the amount of fine of Rs.1 lakh. If
the amount of fine is not paid, as ordered by
the Court, the petitioner has to undergo the
rigorous imprisonment of three years.

Issue notice to the respondent limited to
the question as to whether the sentence on
default of payment of fine may be reduced.

9. We have heard the learned counsel for the
parties. The learned counsel for the appellant contended
that both the courts had committed an error of law in
convicting the appellant. From the evidence of the
prosecution witnesses, it was not established that the
appellant had committed an offence under the Act and
hence he is entitled to acquittal. It was also submitted
that mandatory requirements of the Act had not been
observed and on that ground also, conviction of the
appellant cannot stand. It was further argued that there
is specific provision for imposition of fine on the accused
in the Act, but there is no provision to impose sentence
in lieu of payment of fine and hence, no punishment
could have been awarded on the accused in default of
payment of fine. To that extent, therefore, the order is
illegal and is liable to be set aside. The counsel
submitted that substantive sentence imposed on the
appellant-accused under Section 18 of the Act was
rigorous imprisonment for ten years. The appellant has
already undergone the said sentence. But as the fine of
rupees one lakh was imposed and in default of fine, the
trial Court ordered the appellant to undergo rigorous
imprisonment for three years that he is in jail as he could
not pay the amount of fine. Since the Court has no right
to order substantive sentence in default of payment of
fine, the order passed by the Court imposing sentence
and action of authorities in keeping the appellant in jail
are illegal and unlawful and the appellant is entitled to
be set at liberty forthwith. Alternatively, it was submitted
by the learned counsel that the appellant is a poor
person; he was mere carrier and the contraband opium
did not belong to him; it was his first offence; he did not
abscond after the incident and surrendered immediately;
even after he was enlarged on bail, he never abused the
concession granted in his favour; he presented himself
before the authority of law as soon as he came to know
about the dismissal of his appeal by the High Court. He
has his family and even if it is held by this Court that
imprisonment can be ordered in default of payment of
fine as held by both the courts, on the facts and in the
circumstances of the case that part of the order may be
set aside and liberal view may be taken directing the
release of the appellant.

10. The learned Advocate for the State of Madhya
Pradesh, on the other hand, supported the order of
conviction and sentence. He submitted that the trial
Court appreciated the evidence on record and considered
the sworn testimony of prosecution witnesses, believed
them and recorded a finding of guilt against the
appellant. It was also observed that the procedural
requirements had been complied with and prosecution
was successful in proving the guilt of the accused.
Minimum substantive sentence as also minimum amount
of fine (rigorous imprisonment for ten years and payment
of fine of rupees one lakh] was imposed on the appellant.
Such an order cannot be termed illegal or contrary to
law. The counsel submitted that even in absence of
express provision to suffer imprisonment in default of
payment of fine, the Court must be conceded with the
said power and it cannot be objected to. The learned
counsel contended that the provisions of the Code of
Criminal Procedure, 1973 (hereinafter referred to as
CrPC) make it clear that a Court of law can award
imprisonment in default of payment of fine up to one-
fourth of the term of imprisonment which a Court is
competent to inflict as punishment for the offence. As
under Section 18 of the Act (contravention in relation to
opium) a competent Court can order rigorous
imprisonment on an offender for a term which may
extend to twenty years, imprisonment in default of
payment of fine could be ordered up to five years. The
trial Court, however, taking liberal view, imposed
sentence in default of payment of fine of three years
which could not be said to be unlawful or otherwise
illegal. The counsel, therefore, submitted that the appeal
deserves to be dismissed as no case has been made out
by the appellant.

11. We have given our anxious consideration to
the rival submissions of the parties and in our judgment,
the appeal deserves to be partly allowed.

12. So far as the conviction recorded by the trial
Court and confirmed by the High Court is concerned, no
infirmity has been pointed out by the learned counsel so
as to come to the conclusion that finding of guilt recorded
by the trial Court and confirmed by the High Court can
be held wrong or illegal. Both the courts considered the
depositions on oath of the prosecution witnesses and
held that it was proved beyond reasonable doubt that the
appellant-accused was found in possession of
contraband opium weighing 7 kilos 60 grams. Both the
Courts have also held that all the procedural
requirements had been complied with. The appellant-
accused was not possessing on his person contraband
opium, but it was recovered from a bag. Taking into
account all the facts, in our opinion, both the courts were
right in convicting the accused. We are, therefore,
unable to uphold the argument of the learned counsel for
the appellant that by holding the appellant guilty, the
Courts below have committed an error of law. To that
extent, therefore, the contention has no force and is
accordingly negatived.

13. As regards sentence, the appellant was
carrying opium (7 kilos and 60 grams) and his case was
covered by Section 18 of the Act. Minimum sentence
prescribed thereunder is rigorous imprisonment for ten
years which had been imposed by both the Courts below
which is clearly in consonance with law. Hence, even that
part of the order suffers from no infirmity and must be
upheld.

14. The learned counsel for the appellant,
however, submitted that the appellant has already
undergone substantive sentence of ten years. From the
order of January 31, 2007 extracted hereinabove, it
appears prima facie that what the appellant says is
correct. This is further clear from the application
[Criminal Miscellaneous Application No. 1075 of 2006]
filed on December 7, 2006. But it cannot be overlooked
that the appellant was also ordered to pay minimum fine
of rupees one lakh as required by Section 18 of the Act,
and in default, he was ordered to undergo rigorous
imprisonment for three years. Admittedly, the said
period is not over.

15. Thus, an important and debatable question
which arises for our consideration is whether a Court of
law can order a convict to remain in jail in default of
payment of fine? It is true that Section 18 of the Act does
not expressly say so. It merely provides for imposition of
sentence as also payment of fine. The said section, as it
stood at the relevant time, read thus;

18. Punishment for contravention in
relation to opium poppy and opium.
Whoever, in contravention of any provision of
this Act, or any rule or order made or
condition of licence granted thereunder
cultivates the opium poppy or produces,
manufactures, possesses, sells, purchases,
transports, imports inter-State, exports inter-
State or uses opium shall be punishable, with
rigorous imprisonment for a term which shall
not be less than ten years but which may
extend to twenty years and shall also be liable
to fine which shall not be less than one lakh
rupees but which may extend to two lakh
rupees;

Provided that the court may, for reasons
to be recorded in the judgment, impose a fine
exceeding two lakh rupees.

16. In our opinion, however, even in absence of
specific provision in the Act empowering a Court to order
imprisonment in default of payment of fine, such power
is implicit and is possessed by a Court administering
criminal justice. In this regard, it may be appropriate to
consider the relevant provisions of the Indian Penal Code
[IPC] and the Code of Criminal Procedure, 1973 [CrPC].
Section 40, IPC defines offence. Sections 41 and 42
explain special law and local law respectively. Chapter
III, IPC prescribes various punishments. Few Sections
are relevant which deal with imposition of fine and
imprisonment in default of payment of fine. They are
Sections 63 to 70 and reads thus;

63. Amount of fine
Where no sum is expressed to which a fine
may extend, the amount of fine to which the
offender is liable is unlimited, but shall not be
excessive.

64. Sentence of imprisonment for non-
payment of fine
In every case, of an offence punishable with
imprisonment as well as fine, in which the
offender is sentenced to a fine, whether with or
without imprisonment, and in every case of an
offence punishable with imprisonment or fine,
or] with fine only, in which the offender is
sentenced to a fine, it shall be competent to
the Court which sentences such offender to
direct by the sentence that, in default of
payment of the fine, the offender shall suffer
imprisonment for a certain term, which
imprisonment shall be in excess of any other
imprisonment to which he may have been
sentenced or to which he may be liable under
a commutation of a sentence.

65. Limit to imprisonment for non-payment
of fine, when imprisonment and fine
awardable
The term for which the Court directs the
offender to be imprisoned in default of
payment of a fine shall not exceed one-fourth
of the term of imprisonment which is the
maximum fixed for the offence, if the offence
be punishable with imprisonment as well as
fine.

66. Description of imprisonment for non-
payment of fine
The imprisonment which the Court imposes in
default of payment of a fine may be of any
description to which the offender might have
been sentenced for the offence.

67. Imprisonment for non-payment of fine,
when offence punishable with fine only
If the offence be punishable with fine only, the
imprisonment which the Court imposes in
default of payment of the fine shall be simple,
and] the term for which the Court directs the
offender to be imprisoned, in default of
payment of fine, shall not exceed tile following
scale, that is to say, for any term not exceeding
two months when the amount of the fine shall
not exceed fifty rupees, and for any term not
exceeding four months when the amount shall
not exceed one hundred rupees, and for any
term not exceeding six months in any other
case.

68. Imprisonment to terminate on payment
of fine
The imprisonment which is imposed in default
of payment of a fine shall terminate whenever
that fine is either paid or levied by process of
law.

69. Termination of imprisonment on
payment of proportional part of fine
If, before the expiration of the term of
imprisonment fixed in default of payment,
such a proportion of the fine be paid or levied
that the term of imprisonment suffered in
default of payment is not less than
proportional to the part of the fine still unpaid,
the imprisonment shall terminate.

70. Fine leviable within six years or during
imprisonment-Death not to discharge
property from liability
The fine, or any part thereof which remains
unpaid, may be levied at any time within six
years after the passing of the sentence, and if,
under the sentence, the offender be liable to
imprisonment for a longer period than six
years, then at any time previous to the
expiration of that period; and the death of the
offender does not discharge from the liability
any property which would, after his death, be
legally liable for his debts.

17. Section 30, CrPC provides for sentence of
imprisonment in default of fine. It is also relevant and
reads as under;

30. Sentence of imprisonment in default of
fine.- (1) The Court of a Magistrate may award
such term of imprisonment in default of
payment of fine as is authorised by law:

Provided that the term-

(a) is not in excess of the powers of the
Magistrate under section 29;

(b) shall not, where imprisonment has been
awarded as part of the substantive
sentence, exceed one-fourth of the term of
imprisonment which the Magistrate is
competent to inflict as punishment for the
offence otherwise than as imprisonment in
default of payment of the fine.

(2) The imprisonment awarded under this
section may be in addition to a substantive
sentence of imprisonment for the maximum
term awardable by the Magistrate under
section 29.

18. We may as well refer to Section 25 of the
General Clauses Act, 1897 which states;

25. Recovery of fines.- Sections 63 to 70 of
the Indian Penal Code (45 of 1860) and the
provisions of the Code of Criminal Procedure (5
of 1898) for the time being in force in relation
to the issue and the execution of warrants for
the levy of fines shall apply to all fines imposed
under any Act, Regulation, rule or bye-law
unless the Act, Regulation, rule, or bye-law
contains an express provision to the contrary.

19. From the above provisions, in our opinion, it is
clear that if a person commits any offence under IPC, he
can be punished and when such offence is punishable
with substantive sentence and fine, or substantive
sentence or fine, or fine only, in default of payment of
fine, he can be ordered to undergo imprisonment. Section
30, CrPC prescribes maximum period for which a Court
may award imprisonment in default of payment of fine.

20. But more important issue is whether the above
statutory provisions would apply to special laws and
offences committed by a person not covered by IPC. In
the present case, we are concerned with the provisions of
Narcotic Drugs and Psychotropic Substances Act, 1985
which is a special law. There is no express power in a
Court to order imprisonment in default of payment of
fine. But to us, the law is well-settled and it has been
held since more than a century that such an order can
be passed by a competent Court of law having power to
impose fine as one of the punishments.

21. In Queen-Empress v. Yakoob Sahib, ILR (1899)
22 Mad 238, the accused was convicted for an offence
under Section 3(10) of the Towns Nuisances Act
(Madras), 1889 (Act III of 1889) and was ordered to pay a
fine of rupees eight and in default of payment, to undergo
simple imprisonment for one week. The relevant
provision of law empowered the Court to award fine not
exceeding Rs. 50 or imprisonment of either description
not exceeding eight days.

22. Benson, J. observed that the question was
whether the award of a weeks imprisonment in default of
payment of fine was legal. His Lordship considered the
relevant provisions of IPC and stated;

The question is whether the award of a
weeks imprisonment in default of payment of
the fine is legal, or whether the term of
imprisonment in default is limited by Section
65, Indian Penal Code, to one-fourth of the
term (eight days) of imprisonment awardable
for the offence under Section 3 of Act III of
1889, i.e., to two days in the present case.
Section 67, Indian Penal Code, has obviously
no application to the case. It refers solely to
the cases in which the offence is punishable
with fine only. The present case is punishable
with imprisonment or with fine at the option of
the Magistrate, though not with both. Section
65, Indian Penal Code, however, in my opinion,
is applicable to such a sentence. The words
punishable with imprisonment as well as fine
in that Section must be understood in the
same sense as those words bear in Section 64.
The wording of Section 64, it must be
admitted, is not happy, but I am of opinion
that the Legislature intended by it to
provide for the award of imprisonment in
default of payment of fine in all cases in
which fine can be imposed. Those cases the
section divides into three classes, viz., offences
(1) punishable with imprisonment as well as
fine, (2) punishable with imprisonment and
fine and (3) punishable with fine only. The
first of these classes in my opinion includes
two classes, viz., (a) offences like the present
punishable with imprisonment or fine in the
alternative, and (b) offences punishable, as
most of those under the Indian Penal Code are,
with imprisonment, or fine, or both,
cumulatively. Grammatically it would seem
also to include the second class, viz., offences
punishable with imprisonment and fine, but
this class is separately mentioned, probably
because reference was intended to cases in
which a substantive sentence of imprisonment
must be awarded, the fine, if any, being only in
addition thereto. The Legislature, by Section
64, having given the general power to impose
imprisonment in default of payment of fine,
then proceeded to lay down limits to that
power. Section 65 limited the power in the first
class of cases, Section 67 in the third class. If
the second class is, as I think it is, included in
the first, then Section 65 applies to it also; but,
in any case, Section 33, Criminal Procedure
Code, imposes the same limit in unmistakable
terms. It seems to me unreasonable to suppose
that the Legislature did not intend to include
cases like the present in the first class since
the result would be that, in such cases alone,
there would be no limit save that of the general
power of a Magistrate, and a first-class
Magistrate in a case like the present could
award two years rigorous imprisonment in
default of payment of a petty fine, though in all
other classes of cases his power is strictly
limited. (emphasis supplied)

23. In Sukhdeo Singh v. Calcutta Corporation, AIR
1953 Cal 41, A was convicted by the Municipal
Magistrate for keeping a buffalo within the municipal
limit without the prior permission of the Municipal
Board. He was, therefore fined Rs. 15 and in default, to
suffer simple imprisonment for one week. It was
contended by A that in lieu of fine, the Magistrate could
not have passed an order of sentence of imprisonment as
no such power had been given to him under the Calcutta
Municipal Act, 1923 [Act III of 1923]. The Court,
however, after considering Sections 40, 41, 42 and 64 to
67, IPC came to the conclusion that the learned
Magistrate could order sentence of imprisonment in lieu
of fine by virtue of the said provisions.

24. A similar question came up for consideration
before this Court before fifty years in Bashiruddin Ashraf
v. State of Bihar, 1957 SCR 1032. There a mutawalli was
charged for violating the provision of Section 58 of the
Bihar Wakfs Act, 1947 (Bihar Act VIII of 1948) for not
discharging the obligation enjoined upon him as a
mutawalli. He was, therefore, convicted under Section
65(1) of the Act by the Divisional Magistrate, Patna and
was ordered to pay a fine of Rs. 100 and in default to
undergo simple imprisonment for 15 days. Section 65(1)
read thus;

65 (1) If a mutawalli fails without reasonable
cause, the burden of proving which shall be
upon him, to comply with any order or
direction made or issued under clauses (i), (o)
or (q) of sub-section (2) of section 27 or under
section 56, to comply with the provisions of
sub-section (1) of section 57, sub-section (1) of
section 58, section 59 or section 60, or to
furnish any statement, annual account,
estimate, explanation or other document or
information relating to the waqf of which he is
mutawalli, which he is required or called upon
to furnish under any of the other provisions of
this Act, he shall be punishable with fine
which may extend, in the case of the first,
offence, to two hundred rupees and, in the
case of second or any subsequent offence, to
five hundred rupees.

25. It was contended on behalf of the mutawalli
that Section 65 did not provide for imprisonment in
default of payment of fine. He was, however, ordered to
suffer 15 days simple imprisonment in default of
payment of fine which was illegal. This Court considered
Section 33 of the Code of Criminal Procedure, 1898
(similar to Section 30 of the present Code of Criminal
Procedure, 1973) and Sections 40 and 67, IPC and held
that the contention had no force and it was open to the
Court to order imprisonment of the accused in default of
payment of fine.

26. Though Section 25 of the General Clauses Act,
1897 was not referred to in Bashiruddin Ashraf, in our
opinion, bare reading of the said provision also makes it
explicitly clear and leaves no room for doubt that
Sections 63 to 70, IPC and the provisions of CrPC
relating to award of imprisonment in default of payment
of fine would apply to all cases wherein fines have been
imposed on an offender unless the Act, Regulation, Rule
or Bye-law contains an express provision to the contrary.
We are, therefore, unable to uphold the bald contention
of the appellant that in absence of specific provision to
order imprisonment in default of payment of fine in a
statute, a Court of law has no power to order
imprisonment of an offender who fails to pay fine and
such action would be illegal or without authority of law.
In our judgment, in absence of a provision to the
contrary, viz. that no order of imprisonment can be
passed in default of payment of fine, such power is
explicit and can always be exercised by a Court subject
to the relevant provisions of IPC and CrPC.

27. The next submission of the learned counsel for
the appellant, however, has substance. The term of
imprisonment in default of payment of fine is not a
sentence. It is a penalty which a person incurs on
account of non-payment of fine. The sentence is
something which an offender must undergo unless it is
set aside or remitted in part or in whole either in appeal
or in revision or in other appropriate judicial proceedings
or otherwise. A term of imprisonment ordered in default
of payment of fine stands on a different footing. A person
is required to undergo imprisonment either because he is
unable to pay the amount of fine or refuses to pay such
amount. He, therefore, can always avoid to undergo
imprisonment in default of payment of fine by paying
such amount. It is, therefore, not only the power, but the
duty of the court to keep in view the nature of offence,
circumstances under which it was committed, the
position of the offender and other relevant considerations
before ordering the offender to suffer imprisonment in
default of payment of fine.

28. A general principle of law reflected in Sections
63 to 70, IPC is that an amount of fine should not be
harsh or excessive. The makers of IPC were conscious of
this problem. The Authors of the Code, therefore,
observed;

Death, imprisonment, transportation,
banishment, solitude, compelled labour, are
not, indeed, equally disagreeable to all men.
But they are so disagreeable to all men that
the legislature, in assigning these
punishments to offences, may safely neglect
the differences produced by temper and
situation. With fine, the case is different. In
imposing a fine, it is always necessary to have
as much regard to the pecuniary
circumstances of the offender as to the
character and magnitude of the offence. The
mulet which is ruinous to a labourer is easily
borne by a tradesman, and is absolutely unfelt
by a rich Zamindar. It is impossible to fix any
limit to the amount of a fine which will not
either be so high as to be ruinous to the poor,
or so low as to be no object of terror to the
rich. There are many millions in India who
would be utterly unable to pay a fine of fifty
rupees; there are hundreds of thousands from
whom such a fine might be levied, but whom it
would reduce to extreme distress; there are
thousands to whom it would give very little
uneasiness; there are hundreds to whom it
would be a matter of perfect indifference, and
who would not cross a room to avoid it. The
number of the poor in every country exceeds in
a very great ratio the number of the rich. The
number of poor criminal it is a matter of
absolute indifference whether the fine to which
he is liable to be limited or not, unless it be so
limited as to render it quite inefficient as a
mode of punishing the rich. To a man who
has no capital, who had laid by nothing, whose
monthly wages are just sufficient to provide
himself and his family with their monthly rice,
it matters not whether the fine for assault be
left to be settled by the discretion of the
Courts, or whether a hundred rupees be fixed
as the maximum. There are no degrees in
impossibility. He is no more able to pay a
hundred rupees than to pay a lac. A just and
wise Judge, even if entrusted with a boundless
discretion will not, under ordinary
circumstances, would leave it quite in the
power of an unjust or inconsiderate Judge to
inflect on such an offender all the evil which
can be inflicted on him by means of fine .

It appears to us that the punishment of
fine is a pecuniary appropriate punishment for
all offences to which men are prompted by
cupidity; for it is a punishment which operates
directly on the very feeling which impels men
to such offences. A man who has been guilty
of great offences arising from cupidity, of
forging a bill of exchange, for example, of
keeping a receptacle for stolen goods, or of
existence embezzlement, ought, we conceive, to
be so fined as to reduce him to poverty. That
such a man should, when his imprisonment is
over, return to the enjoyment of three-fourths
of his property, a property which may be very
large and which may have been accumulated
by his offences, appears to us highly
objectionable. Those persons who are most
likely to commit such offences would often be
less deterred by knowing that the offender had
passed several years in imprisonment, than
encouraged by seeing him, after his liberation,
enjoying the far larger part of his wealth. [see
Ratanlal & Dhirajlal, Law of Crimes; 26th
Edn.; (2007); pp.221-22]

29. The Authors further stated;

The next question which it became
our duty to consider was this : when a fine
has been imposed, what measures shall be
adopted in default of payment? And here two
modes of proceeding, with both of which we
were familiar, naturally occurred to us. The
offender may be imprisoned till the fine is aid,
or he may be imprisoned for a certain term,
such imprisonment being considered as
standing in place of the fine. In the former
case, the imprisonment is used in order to
compel him to part with his money; in the
latter case, the imprisonment is a
punishment substituted for another
punishment. Both modes of proceeding
appear to us to be open to strong objections.
To keep an offender in imprisonment till his
fine is paid is, if the fine be beyond his
means, to keep him in imprisonment all his
life; and it is impossible for the best Judge to
be certain that he may not sometimes impose
a fine which shall be beyond the means of an
offender. Nothing could make such a system
tolerable except the constant interference of
some authority empowered to remit
sentences; and such constant interference we
should consider as in itself an evil. On the
other hand, to sentence an offender to fine
and to a certain fixed term of imprisonment
in default of payment, and then to leave it to
himself to determine whether he will part
with his money or lie in goal, appears to us to
be a very objectionable course. The high
authority of Mr. Livingstone is here against
us. He allows the criminal, if sentenced to a
fine exceeding one-fourth of his property, to
compel the Judge to commute the excess for
imprisonment at the rate of one day of
imprisonment for every two dollars of fine,
and he adds, that such imprisonment must
in no case exceed ninety days. We regret that
we cannot agree with him; the object of the
penal law is to deter from offences, and this
can only be done by means of inflictions
disagreeable to offenders. The law ought not
to inflict punishments unnecessarily severe;
but it ought not, on the other hand, to call
the offender into council with his Judges, and
to allow him an option between two
punishments. In general, the circumstance
that he prefers one punishment raises a
strong presumption that he ought to suffer
the other. The circumstance that the love of
money is a stronger passion in his mind than
the love of money is a stronger passion in his
mind than the love of personal liberty is, as
far as it goes, a reason for our availing
ourselves rather of his love of money than of
his love of personal liberty for the purpose of
restraining him from crime. To look out
systematically for the most sensitive part of a
mans mind, in order that we may not direct
our penal sanctions towards that part of his
mind, seems an injudicious policy.

We are far from thinking that the
course which we propose is unexceptionable;
but it appears to us to be less open to
exception that any other which has occurred
to us. We propose that, at the time of
imposing a fine, the Court shall also fix a
certain term of imprisonment which the
offender shall undergo in default of payment.
In fixing this term, the Court will in no case
be suffered to exceed a certain maximum,
which will very according to the nature of the
offence. If the offence be one which is
punishable with imprisonment as well as
fine, the term of imprisonment in default of
payment will not exceed one-fourth of the
longest term of imprisonment fixed by the
Code for the offence. If the offence be one
which by the Code is punishable only with
fine, the term of imprisonment for default of
payment will in no case exceed seven days
[See Ratanlal & Dhirajlal; supra; pp.226-27]

30. The issue also came up for consideration in
some cases. In Emperor v. Mendi Ali, ILR 1941 All 608 :
AIR 1941 All 310, M was charged with an offence of
murder of his wife. The Sessions Court, however,
convicted him for an offence punishable under Section
304, Part I, IPC since M had committed the offence of
killing his wife in grave and sudden provocation as he
saw her (his wife) with his own eyes committing adultery
with N. M was thus altogether deprived of the power of
self-control. But the Sessions Judge not only imposed the
maximum imprisonment of ten years under Section 304,
Part I, but he also imposed a fine of Rs.100 or to undergo
rigorous imprisonment for one year.

31. In a suo motu revision, the High Court
observed that the Sessions Judge had awarded maximum
term of sentence on M for the offence for which he was
found guilty and added to it a fine (which there could
surely have been little prospect of his paying). The result
was that he was, in effect, sentenced to eleven years
rigorous imprisonment.

32. Considering the facts, Braund, J. stated;

So far as the fine is concerned, I cannot
think it is proper, in the case of a poor
peasant, to add to a very long term of
substantive imprisonment a fine which there
is no reasonable prospect of the accused man
paying and for default in paying which he will
have to undergo a yet further term of
imprisonment. And, in my judgment, without
venturing to say whether it is a course which
is strictly in accordance with the law or not, I
cannot help thinking that it becomes all the
more undesirable to impose such a fine
where the term of imprisonment to be
undergo in default will bring the aggregate
sentence of imprisonment to more than the
maximum term of imprisonment sanctioned
by the particular section under which he is
convicted. I venture to think that Judges
should exercise a careful discretion in the
matter of superimposing fines upon long
substantive terms of imprisonment.

(emphasis supplied)

33. We may as well refer to a decision of this Court
in Palaniappa Gounder v. State of T.N. & Ors., (1977) 2
SCC 634. In that case, P was convicted by the Principal
Sessions Judge, Salem and was sentenced to death. The
High Court of Madras upheld the conviction but reduced
the sentence from death to imprisonment for life. But
while reducing the sentence, the Court imposed a fine of
Rs.20,000/- on P. Leave was granted by this Court
limited to the question of the propriety of fine.

34. The Court considered the provisions of IPC as
also CrPC and observed that Courts have power to
impose a sentence of fine and if fine is imposed on an
offender, it cannot be challenged as contrary to law.

35. Speaking for the Court, Chandrachud, J. (as
His Lordship then was) said;

But legitimacy is not to be confused with
propriety and the fact that the Court possesses
a certain power does not mean that it must
always exercise it. Though, therefore, the High
Court had the power to impose on the
appellant a sentence of fine along with the
sentence of life imprisonment the question still
arises whether a sentence of fine of
Rs. 20,000/- is justified in the circumstances
of the case. Economic offences are generally
visited with heavy fines because an offender
who has enriched himself unconsciously or
unjustifiably by violating economic laws can be
assumed legitimately to possess the means to
pay that fine. He must disgorge his ill gotten
wealth. But wrote different considerations
would, in the generality of cases, apply to
matters of the present kind. Though there is
power to combine a sentence of death with a
sentence of fine that power is sparingly
exercised because the sentence of death is an
extreme penalty to impose and adding to that
grave penalty a sentence of fine is hardly
calculated of life imprisonment is seldom
combined with a heavy sentence of fine. We
cannot, of course, go so far as to express
approval of the unqualified view taken in some
of the cases that a sentence of fine for an
offence of murder is wholly "inapposite" (see,
for example), State v. Pandurang Singh, AIR
1956 Bom 711, at p.714) but before imposing
the sentence of fine, particularly a heavy fine,
along with the sentence of death of life
imprisonment, one must pause to consider
whether the sentence of fine is at all called for
and if so, what is a proper or adequate fine to
impose in the circumstances of the cases. As
observed by this Court in Adamji Umer Dalal v.
The State of Bombay, (1952) SCR 172,
determination of the right measure of
punishment is often a point of great difficulty
and no hard and fast rule can be laid down, it
being a matter of discretion which is to be
guided by a variety of considerations but the
Court must always bear in mind the necessity
of maintaining a proportion between the
offence and the penalty proposed for it.
Speaking for the Court Mahajan J. observed in
that case that: "in imposing a fine it is
necessary to have as much regard to the
pecuniary circumstances of the accused
persons as to the character and magnitude of
the offence, and where a substantial term
of imprisonment is inflicted, an excessive fine
should not accompany it except in exceptional
cases" (p. 177). Though that case related to
an economic offence, this Court reduced
the sentence of fine from Rs. 42,300/- to
Rs. 4,000/-on the ground that due regard was
not paid by the lower Court to the principles
governing the imposition of a sentence of fine.

36. We are mindful and conscious that the present
case is under the NDPS Act. Section 18 quoted above
provides penalty for certain offences in relation to opium
poppy and opium. Minimum fine contemplated by the
said provision is rupees one lakh [fine which shall not be
less than one lakh rupees]. It is also true that the
appellant has been ordered to undergo substantive
sentence of rigorous imprisonment for ten years which is
minimum. It is equally true that maximum sentence
imposable on the appellant is twenty years. The learned
counsel for the State again is right in submitting that
clause (b) of sub-section (1) of Section 30, CrPC
authorizes the Court to award imprisonment in default of
payment of fine up to one-fourth term of imprisonment
which the Court is competent to inflict as punishment for
the offence. But considering the circumstances placed
before us on behalf of the appellant-accused that he is
very poor; he is merely a carrier; he has to maintain his
family; it was his first offence; because of his poverty, he
could not pay the heavy amount of fine (rupees one lakh)
and if he is ordered to remain in jail even after the period
of substantive sentence is over only because of his
inability to pay fine, serious prejudice will be caused not
only to him, but also to his family members who are
innocent. We are, therefore, of the view that though an
amount of payment of fine of rupees one lakh which is
minimum as specified in Section 18 of the Act cannot be
reduced in view of the legislative mandate, ends of justice
would be met if we retain that part of the direction, but
order that in default of payment of fine of rupees one
lakh, the appellant shall undergo rigorous imprisonment
for six months instead of three years as ordered by the
trial court and confirmed by the High Court.

37. For the reasons aforesaid, the appeal is partly
allowed, conviction recorded and sentence imposed on
the appellant to undergo rigorous imprisonment for ten
years is confirmed. An order of payment of fine of rupees
one lakh is also upheld. But an order that in default of
payment of fine, the appellant shall undergo rigorous
imprisonment for three years is reduced to rigorous
imprisonment for six months. To that extent, the
appeal filed by the appellant is allowed. If the appellant
has undergone substantive sentence of rigorous
imprisonment for ten years as also rigorous
imprisonment for six months as modified by us in default
of payment of fine, the appellant shall be set at liberty
forthwith unless he is required in any other offence. If
the appellant has not completed the said period, he will
be released after the period indicated hereinabove is over.
The appeal is accordingly disposed of.